Turner v. St. Louis & H. Ry. Co.

• Decision Date: 15 December 1908
• Citation: 134 Mo. 397,114 S.W. 1026
• Court: Missouri Court of Appeals
• Parties: TURNER v. ST. LOUIS & H. RY. CO.

114 S.W. 1026

134 Mo. 397

TURNER v. ST. LOUIS & H. RY. CO.

St. Louis Court of Appeals. Missouri.

December 15, 1908.

1. RAILROADS (§ 345)—ACCIDENTS AT CROSSINGS — FRIGHTENING ANIMALS — ACTIONS— PLEADING AND PROOF.

In an action for personal injuries caused by frightening plaintiff's horse at a railroad crossing by failure to sound a signal, which caused plaintiff to approach close to the train, refusal to admit an ordinance regulating the speed of trains was not error, where the petition pleaded the ordinance, but did not count on the excessive speed of the train as the cause of the accident, and the ordinance was offered in rebuttal, though it had no tendency to rebut any fact proved by defendant and, if relevant at all, should have been offered as part of the evidence in chief.

2. RAILROADS (§ 244)—ACCIDENTS AT CROSSINGS —SIGNALS.

Under 1 Ann. St. 1906, § 1102, providing that the bell on an engine shall be rung 80 rods from a public crossing, and shall be kept ringing until the engine has crossed the road or street, or a whistle shall be sounded at intervals over the distance of 80 rods from the crossing and until the train has passed, except in cities, the engine bell must be rung continuously in cities from a point 80 rods from a crossing.

3. RAILROADS (§ 350)—ACCIDENTS AT CROSSINGS —ACTIONS—QUESTIONS FOR JURY.

In an action for injuries caused by frightening plaintiff's horse at a railroad crossing, where the evidence was conflicting as to whether the engine bell had been rung continuously from a point 80 rods from a crossing, as required by 1 Ann. St. 1906, § 1102, the question of compliance with the statute is for the jury, as is also the question whether plaintiff was negligent in approaching too near the crossing, and whether such negligence contributed to the accident.

4. RAILROADS (§ 346)—ACCIDENTS AT CROSSINGS —ACTIONS—BURDEN OF PROOF.

In an action for injuries caused by frightening plaintiff's horse at a railroad crossing, the burden of proof is on plaintiff to show that defendant did not comply with 1 Ann. St. 1906, § 1102, requiring the ringing of the bell from a point 80 rods from a crossing until the train has passed the crossing, plaintiff having alleged a failure to give such signal; and the burden is on defendant to show whether plaintiff negligently approached too near the crossing and whether such negligence contributed to the accident.

5. RAILROADS (§ 324)—ACCIDENTS AT CROSSINGS —CONTRIBUTORY NEGLIGENCE.

In an action against a railroad company for injuries from the violation of 1 Ann. St. 1906, § 1102, requiring the ringing of an engine bell from a point 80 rods from a crossing until the train passes the crossing, the railroad company may set up contributory negligence as a defense.

6. RAILROADS (§ 346)—ACCIDENTS AT CROSSINGS —ACTIONS—BURDEN OF PROOF.

Plaintiff's horse was frightened at a railroad crossing by a passing train, and plaintiff was thrown from his carriage and injured. In an action to recover for such injuries, he charged that defendant failed to ring its bell continuously from a point 80 rods from the crossing until the train passed the crossing, as required by 1 Ann. St. 1906, § 1102, and that for lack of such warning plaintiff drove closer to the crossing than he otherwise would have done, and his horse was frightened by the passing train, and the escape of steam from the engine. The answer admitted that the horse was frightened by the train, and on the trial plaintiff testified that he would not have approached so close if he had heard a signal. Held, that the burden was on defendant to show some cause for the accident other than the omission of the statutory duty, and an instruction should have been given placing the burden of proving contributory negligence on defendant.

7. RAILROADS (§ 351)—ACCIDENTS AT CROSSINGS —ACTIONS—INSTRUCTIONS.

In an action against a railroad company for injuries caused by frightening plaintiff's horse, in which plaintiff charged that he drove closer to the crossing than he otherwise would have done by reason of defendant's failure to comply with 1 Ann. St. 1906, § 1102, requiring a bell to be rung on a train approaching a crossing, a requested instruction that if the jury believed that defendant failed to ring its bell, as required, and found plaintiff was injured in consequence, that the verdict must be for plaintiff, unless defendant had shown that its failure to ring the bell did not cause the accident, and that the burden of proof was on defendant to show that the failure to ring the bell was not the direct cause of the injury, was not defective in failing to require the jury to find that plaintiff was in the exercise of ordinary care when hurt.

Appeal from Circuit Court, Pike County.

Action by John H. Turner against the St. Louis & Hannibal Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Tapley & Fitzgerrall and Dempsey & McGinnis, for appellant. J. D. Hostetter, for respondent.

GOODE, J.

Action for damages for a personal injury. The accident occurred May 4, 1906, in the city of Bowling Green. Plaintiff, who had resided in said city for about two years, was driving along Centennial avenue, an east and west thoroughfare, intersected by defendant's railway running from northwest to southeast. The hour was 1:30 p. m. Plaintiff was in an uncovered buggy drawn by a single horse. He testified he pulled the horse almost to a stop when he reached the intersection of Centennial avenue and the north and south street nearest the railway crossing, which street was some 200 feet or more from the latter point. He said he looked and listened for an approaching train, but could neither see nor hear one; that he then moved forward from the crossing of the two streets in a walk, continuing to listen for a train. His view was obstructed by houses and trees along the north side of the street. He was driving toward the east, and, as he drew near the crossing, a mixed freight and passenger train came along from the northwest going toward the southeast. The bell was not rung nor the whistle sounded, and he heard nothing of the train until it was almost on him. It was emitting steam, and the steam or the train itself, or both, frightened his horse, causing it to wheel around and throw him out of the buggy, thereby seriously injuring him. The petition alleges that, when plaintiff was within 15 feet of the crossing, a locomotive engine hauling a train suddenly passed over the crossing, and in so passing frightened his horse, which became unmanageable, turned suddenly, and threw him out of the buggy. The acts of negligence alleged are omitting to ring the bell continuously from a point 80 rods from the crossing until the locomotive had passed, and to sound a whistle continuously over the same distance, and disregard of an ordinance of the municipality prohibiting trains and locomotives from running through the city at a higher speed than 5 miles an hour. It is averred that because of the failure of defendant's servants to ring the bell or sound the whistle of the engine, and because plaintiff was relying on such warnings being given if a train approached, he drove nearer the crossing...